Australian Capital Territory
Fair Trading (Australian Consumer Law) Amendment Act 2010
A2010-54
    
Contents
	Page
	1	Name of Act	2
	2	Commencement	2
	3	Legislation amended—schs 1 to 3	2
	4	Legislation repealed	2
Schedule 1	Fair Trading Act 1992	3
Schedule 2	Fair Trading (Consumer Affairs) Act 1973	29
Schedule 3	Consequential amendments	41
Part 3.1	Agents Act 2003	41
Part 3.2	Cemeteries and Crematoria Act 2003	42
Part 3.3	Civil Law (Sale of Residential Property) Act 2003	42
Part 3.4	Civil Law (Wrongs) Act 2002	43
Part 3.5	Competition Policy Reform Act 1996	44
Part 3.6	Crimes (Child Sex Offenders) Regulation 2005	45
Part 3.7	Fair Trading Regulation 2009	46
Part 3.8	Fair Trading (Motor Vehicle Repair Industry) Act 2010	47
Part 3.9	Financial Management Act 1996	49
Part 3.10	Government Procurement Act 2001	49
Part 3.11	Health Act 1993	50
Part 3.12	Insurance Authority Act 2005	50
Part 3.13	Jurisdiction of Courts (Cross‑vesting) Act 1993	51
Part 3.14	Leases (Commercial and Retail) Act 2001	51
Part 3.15	Legislation Act 2001	52
Part 3.16	Liquor Act 2010	52
Part 3.17	Magistrates Court (Agents Infringement Notices) Regulation 2003	53
Part 3.18	Magistrates Court (Sale of Residential Property Infringement Notices) Regulation 2004	54
Part 3.19	Magistrates Court (Security Industry Infringement Notices) Regulation 2003	54
Part 3.20	Racing Act 1999	55
Part 3.21	Road Transport (Public Passenger Services) Act 2001	55
Part 3.22	Sale of Motor Vehicles Act 1977	56
Part 3.23	Second-hand Dealers Regulation 2002	57
Part 3.24	Security Industry Act 2003	57
Part 3.25	Security Industry Regulation 2003	58
Part 3.26	Territory Records Act 2002	58
Part 3.27	Utilities Act 2000	58

Australian Capital Territory
Fair Trading (Australian Consumer Law) Amendment Act 2010
A2010-54

An Act to amend the Fair Trading Act 1992 to apply the Australian Consumer Law as a law of the Territory and to make amendments consequential on the application of that Law, and for other purposes

    

The Legislative Assembly for the Australian Capital Territory enacts as follows:

1	Name of Act
This Act is the Fair Trading (Australian Consumer Law) Amendment Act 2010.
2	Commencement
	(1)	This Act (other than schedule 1, amendment 1.42) commences on 1 January 2011.
Note	The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)). 
	(2)	Schedule 1, amendment 1.42 commences on the later of—
	(a)	the commencement of the Plastic Shopping Bags Ban Act 2010, section 3; and
	(b)	1 January 2011.
3	Legislation amended—schs 1 to 3
This Act amends the legislation mentioned in schedules 1 to 3.
4	Legislation repealed
	(1)	The following legislation is repealed:
·	Door-to-Door Trading Act 1991 (A1991-7)
·	Door-to-Door Trading Regulation 2009 (SL2009-49)
·	Fair Trading (Consumer Affairs) Act 1973 (A1973-17)
·	Fair Trading (Consumer Product Standards) Regulation 2009 (SL2009-19)
·	Lay-by Sales Agreements Act 1963 (A1963-9).
	(2)	All other legislative instruments under the Acts mentioned in subsection (1) are repealed.

Schedule 1	Fair Trading Act 1992
(see s 3)
[1.1]	Long title
substitute
An Act about fair trading and consumer protection, and for other purposes. 
[1.2]	Section 1
substitute
1	Name of Act
This Act is the Fair Trading (Australian Consumer Law) Act 1992.
[1.3]	Section 2, note 1
substitute
Note 1	The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere.
For example, the signpost definition ‘consumer—see the Australian Consumer Law (ACT), section 2 (1).’ means that the term ‘consumer’ is defined in that law and the definition applies to this Act.
[1.4]	New section 4
insert
4	Offences against Act—application of Criminal Code etc
Other legislation applies in relation to offences against this Act. 
Note 1	Criminal Code
The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1), except the following offences:
·	s 37 (4)
·	s 43 (2)
·	s 45 (6)
·	s 52 (2).  
The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).
Note 2	Penalty units
The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.
[1.5]	Sections 5 to 10
omit
[1.6]	Part 2
substitute
Part 2	The Australian Consumer Law
Division 2.1	Definitions
5	Definitions—pt 2
	(1)	In this part:
application law means—
	(a)	a law of a participating jurisdiction that applies the Australian Consumer Law, either with or without modifications, as a law of the participating jurisdiction; or
	(b)	any regulations or other legislative instrument made under a law described in paragraph (a); or
	(c)	the Australian Consumer Law, applying as a law of the participating jurisdiction, either with or without modifications.
Australian Consumer Law means (according to the context)—
	(a)	the Australian Consumer Law text; or
	(b)	the Australian Consumer Law text, applying as a law of a participating jurisdiction, either with or without modifications.
Australian Consumer Law text means the text described in section 6.
instrument means any document, including the following:
	(a)	an Act or an instrument made under an Act;
	(b)	a law of this jurisdiction or an instrument made under that law;
	(c)	an award or other industrial determination or order, or an industrial agreement;
	(d)	any other order (whether executive, judicial or otherwise);
	(e)	a notice, certificate or licence;
	(f)	an agreement;
	(g)	an application made, information or complaint laid, affidavit sworn, or warrant issued, for any purpose;
	(h)	an indictment, presentment, summons or writ;
	(i)	any other pleading in, or process issued in connection with, a legal or other proceeding.
Intergovernmental Agreement means the Intergovernmental Agreement for the Australian Consumer Law made on 2 July 2009 between the Commonwealth, the State of New South Wales, the State of Victoria, the State of Queensland, the State of Western Australia, the State of South Australia, the State of Tasmania, the Australian Capital Territory and the Northern Territory of Australia, as in force for the time being.
jurisdiction means a State or the Commonwealth.
law, in relation to a Territory, means a law of, or in force in, that Territory.
modifications includes additions, omissions and substitutions.
month means a period commencing at the beginning of a day of one of the 12 months of the year and ending immediately before the beginning of the corresponding day of the next month or, if there is no corresponding day, ending at the expiration of the next month.
participating jurisdiction means a jurisdiction that is a party to the Intergovernmental Agreement and applies the Australian Consumer Law as a law of the jurisdiction, either with or without modifications.
State includes a Territory.
Territory means the Australian Capital Territory or the Northern Territory.
this jurisdiction means the Australian Capital Territory.
	(2)	Terms used in this part and also in the Australian Consumer Law (ACT) have the same meanings in this part as they have in that law.
	(3)	For this part—
	(a)	a jurisdiction is taken to have applied the Australian Consumer Law as a law of the jurisdiction if a law of the jurisdiction substantially corresponds to the provisions of the Australian Consumer Law text, as in force from time to time; and
	(b)	that corresponding law is taken to be the Australian Consumer Law, or the Australian Consumer Law text, applying as a law of that jurisdiction.
Division 2.2	Application of Australian Consumer Law
6	The Australian Consumer Law text
The Australian Consumer Law text consists of—
	(a)	the Competition and Consumer Act 2010 (Cwlth), schedule 2; and
	(b)	the regulations under that Act, section 139G.
Note	The Australian Consumer Law text is accessible at www.comlaw.gov.au.
7	Application of Australian Consumer Law
	(1)	The Australian Consumer Law text, as in force from time to time—
	(a)	applies as a law of this jurisdiction; and
	(b)	as so applying may be referred to as the Australian Consumer Law (ACT); and
	(c)	as so applying is a part of this Act.
	(2)	This section has effect subject to section 8, section 9 and section 10.
8	Future modifications of Australian Consumer Law text
	(1)	A modification made by a Commonwealth law to the Australian Consumer Law text after the commencement of this section does not apply under section 7, if the modification is declared by regulation under this Act to be excluded from the operation of that section.
Note	A regulation must be notified, and presented to the Legislative Assembly, under the Legislation Act.
	(2)	A regulation under subsection (1) has effect only if it is notified not later than 3 months after the date of the modification.
	(3)	Subsection (1) ceases to apply to the modification if a further regulation under this Act so provides.
	(4)	For this section, the date of the modification is the date on which the Commonwealth Act effecting the modification receives the Royal Assent or the regulation effecting the modification is registered under the Legislative Instruments Act 2003 (Cwlth).
9	Meaning of generic terms in Australian Consumer Law for purposes of this jurisdiction
In the Australian Consumer Law (ACT): 
court includes the ACAT.
regulator means the commissioner for fair trading.
10	Interpretation of Australian Consumer Law
	(1)	The Acts Interpretation Act 1901 (Cwlth) applies as a law of this jurisdiction to the Australian Consumer Law (ACT).
	(2)	For subsection (1), the Commonwealth Act mentioned in that subsection applies as if—
	(a)	the statutory provisions in the Australian Consumer Law (ACT) were a Commonwealth Act; and
	(b)	the regulations in the Australian Consumer Law (ACT) or instruments under that law were regulations or instruments under a Commonwealth Act.
	(3)	The Legislation Act does not apply to—
	(a)	the Australian Consumer Law (ACT); or
	(b)	any instrument under that law.
11	Application of Australian Consumer Law
	(1)	The Australian Consumer Law (ACT) applies to and in relation to—
	(a)	people carrying on business within this jurisdiction; or
	(b)	bodies corporate incorporated or registered under the law of this jurisdiction; or
	(c)	people ordinarily resident in this jurisdiction; or
	(d)	people otherwise connected with this jurisdiction.
	(2)	Subject to subsection (1), the Australian Consumer Law (ACT) extends to conduct, and other acts, matters and things, occurring or existing outside or partly outside this jurisdiction (whether within or outside Australia).
Division 2.3	References to Australian Consumer Law
12	References to Australian Consumer Law
	(1)	A reference in any instrument to the Australian Consumer Law is a reference to the Australian Consumer Law of any or all of the participating jurisdictions.
	(2)	Subsection (1) has effect except so far as the contrary intention appears in the instrument or the context of the reference otherwise requires.
13	References to Australian Consumer Law of other jurisdictions
	(1)	This section has effect for an Act, a law of this jurisdiction or an instrument under an Act or such a law.
	(2)	If a law of a participating jurisdiction other than this jurisdiction provides that the Australian Consumer Law text as in force for the time being applies as a law of that jurisdiction, the Australian Consumer Law of that jurisdiction is the Australian Consumer Law text, applying as a law of that jurisdiction.
Division 2.4	Application of Australian Consumer Law to jurisdictions
14	Division does not apply to Commonwealth
In this division, participating jurisdiction or other jurisdiction does not include the Commonwealth.
15	Application law of this jurisdiction
The application law of this jurisdiction binds (so far as the legislative power of the Legislative Assembly allows) each participating jurisdiction, so far as the jurisdiction carries on a business, either directly or by an authority of the jurisdiction concerned.
16	Application law of other jurisdictions
	(1)	The application law of each participating jurisdiction other than this jurisdiction binds this jurisdiction, so far as this jurisdiction carries on a business, either directly or by an authority of this jurisdiction.
	(2)	If, because of this part, a provision of the law of another participating jurisdiction binds this jurisdiction, this jurisdiction is subject to that provision despite any prerogative right or privilege.
17	Activities that are not business
	(1)	For section 15 and section 16, the following do not amount to carrying on a business:
	(a)	imposing or collecting—
	(i)	taxes; or
	(ii)	levies; or
	(iii)	fees for authorisations;
	(b)	granting, refusing to grant, revoking, suspending or varying authorisations (whether or not they are subject to conditions);
	(c)	a transaction involving—
	(i)	only people who are all acting for the same jurisdiction (and none of whom is an authority of a State); or
	(ii)	only people who are all acting for the same authority of a State; or
	(iii)	only a State and 1 or more non-commercial authorities of that State; or
	(iv)	only non-commercial authorities of the same State;
	(d)	the acquisition of primary products by a government body under legislation, unless the acquisition occurs because—
	(i)	the body chooses to acquire the products; or
	(ii)	the body has not exercised a discretion that it has under the legislation that would allow it not to acquire the products.
	(2)	Subsection (1) does not limit the things that do not amount to carrying on a business for section 15 and section 16.
	(3)	In this section:
acquisition of primary products by a government body under legislation includes vesting of ownership of primary products in a government body by legislation.
authorisation means a licence, permit, certificate or other authorisation that allows the holder of the authorisation to supply goods or services.
government body means a State or an authority of a State.
primary products means—
	(a)	agricultural or horticultural produce; or
	(b)	crops, whether on or attached to the land or not; or
	(c)	animals (whether dead or alive); or
	(d)	the bodily produce (including natural increase) of animals.
	(4)	For this section, an authority of a State is non-commercial if—
	(a)	it is constituted by only one person; and
	(b)	it is neither a trading corporation nor a financial corporation.
18	Jurisdictions not liable to pecuniary penalty or prosecution
	(1)	Nothing in the application law of this jurisdiction makes any jurisdiction liable to a pecuniary penalty or to be prosecuted for an offence.
	(2)	Without limiting subsection (1), nothing in the application law of a participating jurisdiction makes this jurisdiction liable to a pecuniary penalty or to be prosecuted for an offence.
	(3)	The protection in subsection (1) or (2) does not apply to an authority of any jurisdiction.
Division 2.5	Miscellaneous
19	Conferral of functions and powers on certain bodies
	(1)	The authorities and officers of the Commonwealth mentioned in the Australian Consumer Law (ACT) have the functions and powers conferred or expressed to be conferred on them under the Australian Consumer Law (ACT).
	(2)	In addition to the powers mentioned in subsection (1), the authorities and officers mentioned in that subsection have power to do all things necessary or convenient to be done in connection with the performance of the functions and exercise of the powers mentioned in that subsection.
20	No doubling-up of liabilities
	(1)	If—
	(a)	an act or omission is an offence against the Australian Consumer Law (ACT) and is also an offence against an application law of another participating jurisdiction; and
	(b)	the offender has been punished for the offence under the application law of the other jurisdiction;
the offender is not liable to be punished for the offence against the Australian Consumer Law (ACT).
	(2)	If a person has been ordered to pay a pecuniary penalty under the application law of another participating jurisdiction, the person is not liable to a pecuniary penalty under the Australian Consumer Law (ACT) in relation to the same conduct.
[1.7]	Section 33 (1)
omit
shall
substitute
must
[1.8]	Section 33 (1)
omit
so
[1.9]	Section 34 (5)
omit
[1.10]	Section 35
omit
[1.11]	Section 36 (1)
substitute
	(1)	If the commissioner believes on reasonable grounds that a person in carrying on a business has not complied with an approved code, the commissioner may request the person to give within a stated time a written undertaking about 1 or more of the following:
	(a)	stopping the conduct;
	(b)	future compliance with the code;
	(c)	the action the person will take to rectify any consequence of the non-compliance.
[1.12]	Section 36 (3)
omit
[1.13]	Section 37
substitute
37	Enforcement of undertakings
	(1)	If a person fails to comply with a request by the commissioner to give an undertaking under section 36, the commissioner may apply to the Magistrates Court for an order under subsection (2).
	(2)	If the court is satisfied that there were grounds for requesting the undertaking, the court may make 1 or more of the following orders:
	(a)	an order directing the person to do something that would have been required to be done under the undertaking if the undertaking had been given;
	(b)	any other order that the court considers appropriate.
	(3)	If the commissioner considers that a person has breached an undertaking, the commissioner may apply to the Magistrates Court for an order under subsection (4).
	(4)	If the court is satisfied that the person has breached the undertaking, the court may make 1 or more of the following orders:
	(a)	an order directing the person to comply with the undertaking;
	(b)	any other order that the court considers appropriate.
	(5)	A person commits an offence if the person fails to comply with an order under this section.
Maximum penalty:  50 penalty units.
[1.14]	Section 39
substitute
39	Register of undertakings
	(1)	The commissioner must keep a register of undertakings.
	(2)	The register may include any other information the commissioner considers appropriate.
	(3)	The register may be kept in any form, including electronically, that the commissioner decides.
	(4)	The commissioner may correct any mistake, error or omission in the register.
	(5)	The commissioner may change a detail included in the register to keep the register up-to-date.
	(6)	The register must be available for public inspection, free of charge, during normal business hours on any business day.

[1.15]	Sections 32 to 39 (as amended)
renumber as sections 21 to 27
[1.16]	Part 4
substitute
Part 4	Advisory committees
28	Establishment of advisory committees
	(1)	The Minister may establish advisory committees to provide advice to the Minister or the commissioner about fair trading and consumer protection.
	(2)	An instrument establishing a committee is a notifiable instrument.
Note	A notifiable instrument must be notified under the Legislation Act.
	(3)	An advisory committee must provide advice as required by the Minister or the commissioner and may provide advice on its own initiative.
	(4)	In exercising its functions, an advisory committee may consult with members of the public and with other entities interested in fair trading and consumer protection matters.
29	Advisory committee membership
An advisory committee is made up of—
	(a)	the commissioner; and
	(b)	other members appointed by the Minister who the Minister considers have the experience or expertise in relation to fair trading and consumer protection matters to qualify the person to exercise the functions of a committee member. 
30	Advisory committee—general procedure
	(1)	Meetings of an advisory committee are to be held when and where it decides.
	(2)	An advisory committee may conduct its proceedings (including its meetings) as it considers appropriate.
31	Reimbursement of expenses for advisory committee members
	(1)	A member of an advisory committee is not entitled to be paid for the exercise of the member’s functions.
	(2)	However, a member may apply to the commissioner for reimbursement of expenses reasonably incurred by the member for the purpose of attending a meeting of a committee.
[1.17]	Part 4A heading
renumber as part 6
[1.18]	Section 51C, new definition of code
insert
code means the National Credit Code.
[1.19]	Sections 51C to 51E (as amended)
renumber as sections 62 to 64
[1.20]	Part 5
substitute
Part 7 	Miscellaneous
65	Certificate evidence
	(1)	A certificate that appears to be signed by the commissioner, and states any of the following matters, is evidence of the matter:
	(a)	that a stated investigation made, or being made, by the commissioner or another stated person was made, or is being made, under part 5;
	(b)	that on a stated date, or during a stated period, a stated person was an investigator.
	(2)	A court must accept a certificate under this section as proof of the matters stated in it if there is no evidence to the contrary.
66	Protection of officials from liability
	(1)	In this section:
official means—
	(a)	the commissioner; or
	(b)	a person who is exercising, or has exercised, a function under this Act; or
	(c)	a person who is, or has been, engaged in the administration of this Act.
	(2)	An official, or anyone engaging in conduct under the direction of an official, is not civilly liable for conduct engaged in honestly and without recklessness—
	(a)	in the exercise of a function under this Act; or
	(b)	in the reasonable belief that the conduct was in the exercise of a function under this Act.
	(3)	Any liability that would, apart from this section, attach to an official attaches instead to the Territory.
Note	A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act, s 104).
67	Regulation-making power
	(1)	The Executive may make regulations for this Act.
Note	A regulation must be notified, and presented to the Legislative Assembly, under the Legislation Act.
	(2)	A regulation may create offences and fix maximum penalties of not more than 20 penalty units for the offences.
[1.21]	New schedule 1
insert
Schedule 1	Australian consumer law transitional provisions
1.1	Definitions—sch 1
In this schedule:
commencement day means 1 January 2011.
repealed Acts means—
	(a)	the Door-to-Door Trading Act 1991; and
	(b)	the Fair Trading (Consumer Affairs) Act 1973; and
	(c)	the Lay-by Sales Agreements Act 1963.
1.2	Transitional—reference to a repealed Act
	(1)	In any Act, instrument made under an Act or a document, a reference to a repealed Act is, in relation to anything to which the Australian Consumer Law (ACT) applies, a reference to the Australian Consumer Law (ACT).
	(2)	In any Act, instrument made under an Act or a document, a reference to a provision of a repealed Act is, in relation to anything to which the Australian Consumer Law (ACT) applies, a reference to the corresponding provision of the Australian Consumer Law (ACT).
	(3)	In any Act, instrument made under an Act or a document, a reference to anything that is no longer applicable because of the repeal or amendment of a repealed Act by this Act and for which there is a corresponding thing under the Australian Consumer Law (ACT), is taken to be a reference to the corresponding thing under the Australian Consumer Law (ACT), if the context allows and if otherwise appropriate.
Note	A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act, s 104).
1.3	Transitional—advisory committees
	(1)	Subsection (2) applies to an advisory committee established under the Fair Trading (Consumer Affairs) Act 1973, section 3 in existence immediately before commencement day. 
	(2)	The committee is taken to be an advisory committee established under this Act.
	(3)	Subsection (4) applies if, immediately before commencement day, a person is a member of an advisory committee under the Fair Trading (Consumer Affairs) Act 1973, section 3.
	(4)	The person is taken to be a member of the relevant committee under this Act.
1.4	Transitional—regulations
	(1)	A regulation may prescribe transitional matters necessary or convenient to be prescribed because of the repeal of the repealed Acts.
	(2)	A regulation may modify this schedule (including in relation to another territory law) to make provision in relation to anything that, in the Executive’s opinion, is not, or is not adequately or appropriately, dealt with in this schedule.
	(3)	A regulation under subsection (2) has effect despite anything elsewhere in this Act.
1.5	Expiry—sch 1
	(1)	This schedule expires on 1 January 2014.
	(2)	This schedule is a law to which the Legislation Act, section 88 (Repeal does not end effect of transitional laws etc) applies.
[1.22]	Dictionary, note 2
omit
·	ACT
·	contravene
·	liability
·	month
[1.23]	Dictionary, note 2
insert
·	ACAT
[1.24]	Dictionary, definition of acquire 
omit
[1.25]	Dictionary, new definition of advisory committee
insert
advisory committee means a committee established under section 28.
[1.26]	Dictionary, definition of annual percentage rate
substitute
annual percentage rate, for part 6 (Maximum annual percentage rate and disclosure)—see section 62.
[1.27]	Dictionary, new definition of application law
insert 
application law, for part 2 (The Australian Consumer Law)—see section 5 (1).
[1.28]	Dictionary, definition of arrive at
omit
[1.29]	Dictionary, new definitions
insert
Australian Consumer Law, for part 2 (The Australian Consumer Law)—see section 5 (1). 
Australian Consumer Law (ACT) means the provisions applying in this jurisdiction because of section 7.
Australian Consumer Law text, for part 2 (The Australian Consumer Law)—see section 5 (1).
[1.30]	Dictionary, definition of business
substitute
business—see the Australian Consumer Law (ACT), section 2 (1).
[1.31]	Dictionary, new definition of business premises 
insert
business premises, for division 5.2 (Investigations)—see section 35.
[1.32]	Dictionary, definition of code
substitute
code, for part 6 (Maximum annual percentage rate and disclosure)—see section 62.
[1.33]	Dictionary, definition of commissioner
substitute
commissioner means the Commissioner for Fair Trading appointed under section 32.
[1.34]	Dictionary, definition of conduct
omit
[1.35]	Dictionary, new definition of connected
insert
connected, for division 5.2 (Investigations)—see section 35.
[1.36]	Dictionary, definitions of consumer and contract document
substitute
consumer—see the Australian Consumer Law (ACT), section 2 (1).
contract document, for part 6 (Maximum annual percentage rate and disclosure)—see section 62.
[1.37]	Dictionary, new definition of court
insert
court includes any tribunal or person having authority under a law, or by consent of parties, to receive evidence.
[1.38]	Dictionary, definition of covenant
omit
[1.39]	Dictionary, definitions of credit, credit contract and credit fees and charges
substitute
credit, for part 6 (Maximum annual percentage rate and disclosure)—see section 62.
credit contract, for part 6 (Maximum annual percentage rate and disclosure)—see section 62.
credit fees and charges, for part 6 (Maximum annual percentage rate and disclosure)—see section 62.
[1.40]	Dictionary, definitions of disposal and engaging
omit
[1.41]	Dictionary, new definition of fair trading legislation
insert
fair trading legislation means—
	(a)	the Agents Act 2003; or
	(b)	the Australian Consumer Law (ACT); or
	(c)	the Eggs (Labelling and Sale) Act 2001; or
	(d)	the Fair Trading (Australian Consumer Law) Act 1992; or
	(e)	the Liquor Act 2010; or
	(f)	the Security Industry Act 2003.
[1.42]	Dictionary, definition of fair trading legislation, new paragraph (ea)
insert
	(ea)	the Plastic Shopping Bags Ban Act 2010; or
[1.43]	Dictionary, definition of goods
substitute
goods—see the Australian Consumer Law (ACT), section 2 (1).
[1.44]	Dictionary, new definitions 
insert
identity card means an identity card issued to an investigator under section 37.
instrument, for part 2 (The Australian Consumer Law)—see section 5 (1).
Intergovernmental Agreement, for part 2 (The Australian Consumer Law)—see section 5 (1).
investigation means an investigation under part 5.
investigator means the commissioner or a person who is authorised by the commissioner under section 36.
[1.45]	Dictionary, definition of involved
omit
[1.46]	Dictionary, new definitions
insert 
jurisdiction, for part 2 (The Australian Consumer Law)—see section 5 (1).
law, in relation to a Territory, for part 2 (The Australian Consumer Law)—see section 5 (1). 
modifications, for part 2 (The Australian Consumer Law)—see section 5 (1).
month, for part 2 (The Australian Consumer Law)—see section 5 (1).
[1.47]	Dictionary, definition of new participant
omit
[1.48]	Dictionary, new definitions of occupier and offence
insert
occupier, of premises, for division 5.2 (Investigations)—see section 35.
offence, for division 5.2 (Investigations)—see section 35.
[1.49]	Dictionary, definition of offering
omit
[1.50]	Dictionary, new definition of other jurisdiction
insert
other jurisdiction, for division 2.4 (Application of Australian Consumer Law to jurisdictions)—see section 14.
[1.51]	Dictionary, definitions of participant and participate
omit
[1.52]	Dictionary, new definition of participating jurisdiction
insert 
participating jurisdiction—
	(a)	for part 2 (The Australian Consumer Law)—see section 5 (1); and
	(b)	for division 2.4 (Application of Australian Consumer Law to jurisdictions)—see section 14.
[1.53]	Dictionary
omit the definitions of
participation payment
payment
price
provision
published
pyramid selling scheme
recruitment payment
refusing
require
resupply
send
[1.54]	Dictionary, definition of services
substitute
services—see the Australian Consumer Law (ACT), section 2 (1).
[1.55]	Dictionary, definition of share
omit
[1.56]	Dictionary, new definition of State
insert 
State, for part 2 (The Australian Consumer Law)—see section 5 (1).
[1.57]	Dictionary, definition of statement
omit
[1.58]	Dictionary, new definition of supplier
insert
supplier—see the Australian Consumer Law (ACT), section 2 (1).
[1.59]	Dictionary, definition of supply
substitute
supply—see the Australian Consumer Law (ACT), section 2 (1).
[1.60]	Dictionary, new definitions of Territory and this jurisdiction
insert 
Territory, for part 2 (The Australian Consumer Law)—see section 5 (1).
this jurisdiction, for part 2 (The Australian Consumer Law)—see section 5 (1). 
[1.61]	Dictionary, definitions of trade or commerce, unsolicited goods and unsolicited services
omit

Schedule 2	Fair Trading (Consumer Affairs) Act 1973
(see s 3)
[2.1]	Section 7 (1) (f)
omit
Territory law
substitute
territory law
[2.2]	Section 7 (2)
omit
his or her
substitute
the commissioner’s 
[2.3]	Section 9
omit
section 7 (1) (b), (c) or (d)
substitute
section 33 (1) (b), (c) or (d)
[2.4]	Section 10 (3) (c)
omit
under the regulations
substitute
by regulation
[2.5]	Section 10 (4) 
omit
his or her
substitute
the person’s
[2.6]	Section 11
substitute
11	Power not to be exercised before identity card shown
An investigator may exercise a power under a territory law in relation to a person only if the investigator first shows the person the investigator’s identity card.
[2.7]	Section 12A (1)
omit everything before paragraph (b), substitute
12A	Consent to entry
	(1)	When asking for the occupier’s consent to enter premises under this division, an investigator must—
	(a)	show the investigator’s identity card; and
[2.8]	Section 12C (1)
after
fax,
insert
email,
[2.9]	Section 12D (1) (f)
omit
section 12E (Power to seize evidence)
substitute
section 45 (Power to seize evidence)
[2.10]	Section 12I, note 1
omit
Territory law
substitute
territory law
[2.11]	Section 12N (4)
omit
The regulations
substitute
A regulation
[2.12]	Section 13 (1) (a)
omit
his or her
substitute
the person’s
[2.13]	Section 13 (1) (a) (i) to (iii)
omit
specified
substitute
stated
[2.14]	Section 13 (1) (b) and (c)
substitute
	(b)	may, on giving a corporation a written warning of its obligation to comply with a requirement under this section, by written notice, require the executive officer of the corporation—
	(i)	to give to the investigator, by writing signed by the officer, information stated in the notice; and
	(ii)	to give to the investigator, orally, information stated in the notice; and
	(iii)	to produce to the investigator a document stated in the notice; and
	(c)	may require an entity mentioned in paragraph (a) or (b) to give the information or produce the document—
	(i)	at a place stated in the notice; and
	(ii)	at or within a time stated in the notice.
[2.15]	Section 13 (3) 
omit
specified
substitute
stated
[2.16]	Section 13 (4) 
omit
section 12
substitute
section 39
[2.17]	Section 13 (4) 
omit
his or her
substitute
the investigator’s
[2.18]	New section 13 (5)
insert
	(5)	In this section:
executive officer means a person (however described and whether or not the person is a director of the corporation) who is concerned with, or takes part in, the corporation’s management.
[2.19]	Section 14 heading
omit
s 13
substitute
s 52
[2.20]	Section 14 (1) (a)
omit
section 13
substitute
section 52
[2.21]	Section 14 (1) (b)
omit
such a
substitute
the
[2.22]	Section 14 (2) 
omit
shall
substitute
must
[2.23]	Section 14 (2)
omit
afforded
substitute
given
[2.24]	Section 15  
substitute
15	Secrecy
	(1)	A person to whom this section applies commits an offence if—
	(a)	the person—
	(i)	makes a record of protected information about someone else; and
	(ii)	is reckless about whether the information is protected information about someone else; or
	(b)	the person—
	(i)	does something that divulges protected information about someone else; and
	(ii)	is reckless about whether—
	(A)	the information is protected information about someone else; and
	(B)	doing the thing would result in the information being divulged to someone else.
Maximum penalty:  50 penalty units, imprisonment for 6 months or both.
	(2)	Subsection (1) does not apply if the record is made, or the information is divulged—
	(a)	under this Act or another law applying in the Territory; or
	(b)	in relation to the exercise of a function, as a person to whom this section applies, under this Act or another law applying in the Territory.
Note	The defendant has an evidential burden in relation to the matters mentioned in ss (2) and (3) (see Criminal Code, s 58).
	(3)	Subsection (1) does not apply to the divulging of protected information about someone with the person’s consent.
	(4)	A person to whom this section applies commits an offence if, in a criminal proceeding against a defendant, the person divulges protected information to a court, or produces a document to a court, that was given or produced by the defendant in accordance with a requirement under section 13 (1) unless—
	(a)	the proceeding is for an offence against section 13 (2); or
	(b)	the proceeding is in respect of the falsity of the information or of a statement in the document.
Maximum penalty:  50 penalty units, imprisonment for 6 months or both.
	(5)	A person to whom this section applies need not divulge protected information to a court, or produce a document containing protected information to a court, unless it is necessary to do so for this Act or another law applying in the Territory.
	(6)	In this section:
court includes a tribunal, authority or person having power to require the production of documents or the answering of questions.
divulge includes communicate.
person to whom this section applies means a person —
	(a)	who is or has been—
	(i)	the commissioner; or
	(ii)	a member of the staff of the commissioner; or
	(b)	mentioned in section 7 (2); or
	(c)	who exercises, or has exercised, a function under this Act.
produce includes allow access to.
protected information means information about a person that is disclosed to, or obtained by, a person to whom this section applies because of the exercise of a function under this Act by the person or someone else.
[2.25]	Section 16
substitute
16	Commissioner may begin or defend legal proceeding on behalf of consumer
	(1)	This section applies if a complaint or other matter involving a consumer is made or referred to the commissioner.
	(2)	The commissioner may, on behalf of the consumer and either alone or jointly, begin a legal proceeding against another person or defend a proceeding brought against the consumer for the purpose of enforcing or protecting the rights of the consumer in relation to an infringement, or suspected infringement, by that other person of—
	(a)	those rights; or
	(b)	a law in force in the Territory relating to the interests of consumers.
	(3)	The commissioner must not begin or defend a proceeding under subsection (2) unless the commissioner is satisfied that—
	(a)	the consumer has a cause of action or a good defence to the proceeding; or
	(b)	it is otherwise in the public interest to do so. 
16A	Commissioner must obtain consent in relation to proceeding
	(1)	The commissioner must not begin or defend a proceeding under section 16 unless the commissioner has—
	(a)	the written consent of the consumer; and
	(b)	the written consent of the Minister.
	(2)	Nothing in subsection (1) requires the commissioner to obtain the consent of the consumer or the Minister in relation to the defence of a counterclaim, set-off or cross-action.
	(3)	A consent given under subsection (1) (a) is irrevocable except with the consent of the commissioner.
	(4)	A consent given under subsection (1) (b) is subject to the conditions the Minister considers appropriate.
16B	Conduct of proceeding by commissioner
	(1)	Subject to section 16A (1), the commissioner may, without consulting or seeking the consent of the consumer, conduct a proceeding under section 16 (2) in the name of the consumer and in the way the commissioner considers appropriate.
	(2)	For the purpose of conducting a proceeding under section 16 (2), the commissioner has the same rights as the consumer would have had in the conduct of the proceeding, including the right—
	(a)	to sign documents in connection with the proceeding on behalf of the consumer; and
	(b)	to settle an action or part of an action; and
	(c)	to give an undertaking in relation to costs.
16C	Court’s powers
In a proceeding under section 16 (2), a court has the same powers as it would have had if the proceeding had been begun by the consumer.
16D	Recovery of money other than costs
Money (other than costs) recovered by the commissioner as a result of a proceeding under section 16 (2) must be paid to the consumer without deduction.
16E	Costs
	(1)	If an order for costs is made against the consumer in relation to a proceeding under section 16 (2)—
	(a)	the costs must be paid by the commissioner; and
	(b)	the order may be enforced against the commissioner as if the commissioner were the consumer; and
	(c)	the order must not be enforced against the consumer.
	(2)	If an order for costs is made in favour of the consumer—
	(a)	the costs are payable to the commissioner; and
	(b)	the order may be enforced by the commissioner.
16F	Commissioner not personally liable
The commissioner is not personally liable as a result of a proceeding under section 16 (2) but any amount that the commissioner becomes liable to pay under section 16E (1) must be paid by the Territory. 
[2.26]	Part 3 (as amended)
relocate to the Fair Trading Act 1992 as part 5 and renumber sections 6 to 16F as sections 32 to 61
[2.27]	Schedules 2 and 3
relocate to the Fair Trading Act 1992 as schedules 2 and 3

Schedule 3	Consequential amendments 
(see s 3)
Part 3.1	Agents Act 2003
[3.1]	Section 7, definition of fair trading legislation and note
substitute
fair trading legislation—see the Fair Trading (Australian Consumer Law) Act 1992, dictionary.
Note	This Act forms part of the fair trading legislation.  Other fair trading legislation includes the Fair Trading (Australian Consumer Law) Act 1992, the Australian Consumer Law (ACT) and the Security Industry Act 2003.  As part of the fair trading legislation, this Act is subject to various provisions of the Fair Trading (Australian Consumer Law) Act 1992 about the administration and enforcement of the fair trading legislation generally.
[3.2]	Division 3.4 heading, note
omit
Fair Trading (Consumer Affairs) Act 1973, s 7
substitute
Fair Trading (Australian Consumer Law) Act 1992, s 33
[3.3]	Division 4.4 heading, note
omit
Fair Trading (Consumer Affairs) Act 1973, s 7
substitute
Fair Trading (Australian Consumer Law) Act 1992, s 33
[3.4]	Dictionary, note 2
insert
·	Australian Consumer Law (ACT)
[3.5]	Dictionary, definition of investigator
omit
Fair Trading (Consumer Affairs) Act 1973
substitute
Fair Trading (Australian Consumer Law) Act 1992
Part 3.2	Cemeteries and Crematoria Act 2003
[3.6]	Section 30 (5)
omit
Trade Practices Act 1974 (Cwlth)
substitute
Competition and Consumer Act 2010 (Cwlth)
Part 3.3	Civil Law (Sale of Residential Property) Act 2003
[3.7]	Section 8 (2) (c)
substitute
	(c)	land or a unit subject to the Retirement Villages Industry Code of Practice under the Fair Trading (Australian Consumer Law) Act 1992; or
Part 3.4	Civil Law (Wrongs) Act 2002
[3.8]	Section 107B (2) (b)
substitute
	(b)	a claim for economic loss or damage to property in an action for damages under the Australian Consumer Law (ACT), section 236 for a contravention of that law, part 3.1 (Unfair practices).
[3.9]	Section 107C (3)
substitute
	(3)	In this section:
acquire—see the Australian Consumer Law (ACT), section 2 (1).
business—see the Australian Consumer Law (ACT), section 2 (1).
goods—see the Australian Consumer Law (ACT), section 2 (1).
resupply, of goods acquired from a person, includes—
	(a)	a supply of the goods (the first goods) to another person in an altered form or condition; and
	(b)	a supply to another person of goods in which the first goods have been incorporated.
services—see the Australian Consumer Law (ACT), section 2 (1).
supply—see the Australian Consumer Law (ACT), section 2 (1).
[3.10]	Schedule 3, section 3.2, paragraph (b)
substitute
	(b)	an action for breach of the Competition and Consumer Act 2010 (Cwlth) or the Australian Consumer Law (ACT); or
[3.11]	Dictionary, note 2
insert
·	Australian Consumer Law (ACT)
Part 3.5	Competition Policy Reform Act 1996
[3.12]	Section 2 etc
omit
Trade Practices Act
substitute
Competition and Consumer Act
in
·	section 2, note 1
·	sections 3 and 4
·	section 8 (6)
·	section 27
·	sections 34 and 35
·	section 39
·	dictionary, definition of commission
[3.13]	Dictionary, new definition of Competition and Consumer Act
insert
Competition and Consumer Act means the Competition and Consumer Act 2010 (Cwlth).
[3.14]	Dictionary, definitions of council, officer and schedule version of part 4
omit
Trade Practices Act
substitute
Competition and Consumer Act
[3.15]	Dictionary, definition of Trade Practices Act
omit
[3.16]	Dictionary, definition of tribunal
omit
Trade Practices Act
substitute
Competition and Consumer Act
Part 3.6	Crimes (Child Sex Offenders) Regulation 2005
[3.17]	Section 3, note 1
omit
For example, the signpost definition ‘credit card—see the Fair Trading Act 1992, section 28 (Unsolicited credit and debit cards).’ means that the term ‘credit card’ is defined in that dictionary and the definition applies to this regulation.
substitute
For example, the signpost definition ‘credit card—see the Australian Consumer Law (ACT), section 2 (1).’ means that the term ‘credit card’ is defined in that law and the definition applies to this regulation.
[3.18]	Dictionary, note 2
insert
·	Australian Consumer Law (ACT)
[3.19]	Dictionary, definitions of credit card and debit card
substitute
credit card—see the Australian Consumer Law (ACT), section 2 (1).
debit card—see the Australian Consumer Law (ACT), section 2 (1).
Part 3.7	Fair Trading Regulation 2009
[3.20]	Section 3 heading and note
omit
s 51D
substitute
s 63
[3.21]	Section 4 (7) 
omit
section 158 to section 160
substitute
section 180 to section 182
Part 3.8	Fair Trading (Motor Vehicle Repair Industry) Act 2010
[3.22]	Section 3, note 1
omit
For example, the signpost definition ‘consumer—see the Fair Trading Act 1992, section 6.’ means that the term ‘consumer’ is defined in that section and the definition applies to this Act.
substitute
For example, the signpost definition ‘consumer—see the Australian Consumer Law (ACT), section 2 (1).’ means that the term ‘consumer’ is defined in that law and the definition applies to this Act.
[3.23]	Section 10 (6) (d) and (e)
substitute
	(d)	an offence against the Competition and Consumer Act 2010 (Cwlth); or
	(e)	an offence against the Australian Consumer Law (ACT) or a corresponding law of a State; or
[3.24]	Part 7 heading, note
omit
Fair Trading (Consumer Affairs) Act 1973
substitute
Fair Trading (Australian Consumer Law) Act 1992
[3.25]	Section 49 (2)
omit
Trade Practices Act 1974 (Cwlth)
substitute
Competition and Consumer Act 2010 (Cwlth)
[3.26]	Section 49 (4)
substitute
	(4)	In this section:
goods—see the Australian Consumer Law (ACT), section 2 (1).
price—see the Australian Consumer Law (ACT), section 2 (1).
services—see the Australian Consumer Law (ACT), section 2 (1).
supply—see the Australian Consumer Law (ACT), section 2 (1).
trade or commerce—see the Australian Consumer Law (ACT), section 2 (1).
[3.27]	Section 64 heading
omit
Fair Trading (Consumer Affairs) Act 1973
substitute
Fair Trading (Australian Consumer Law) Act 1992
[3.28]	Dictionary, note 2
insert
·	Australian Consumer Law (ACT)
[3.29]	Dictionary, definition of consumer
substitute
consumer—see the Australian Consumer Law (ACT), section 2 (1).
Part 3.9	Financial Management Act 1996
[3.30]	Section 103 (3)
omit
Trade Practices Act 1974 (Cwlth)
substitute
Competition and Consumer Act 2010 (Cwlth)
Part 3.10	Government Procurement Act 2001
[3.31]	Section 8 (5)
omit
Trade Practices Act 1974 (Cwlth)
substitute
Competition and Consumer Act 2010 (Cwlth)
Part 3.11	Health Act 1993
[3.32]	Section 107 heading
omit
Trade Practices Act
substitute
Competition and Consumer Act
[3.33]	Section 107
omit
Trade Practices Act 1974 (Cwlth)
substitute
Competition and Consumer Act 2010 (Cwlth)
Part 3.12	Insurance Authority Act 2005
[3.34]	Section 13 (4)
omit
Trade Practices Act 1974 (Cwlth)
substitute
Competition and Consumer Act 2010 (Cwlth)
Part 3.13	Jurisdiction of Courts (Cross‑vesting) Act 1993
[3.35]	Section 10 heading
omit
Trade Practices Act
substitute
Competition and Consumer Act
[3.36]	Section 10 (b)
omit
Trade Practices Act 1974 (Cwlth)
substitute
Competition and Consumer Act 2010 (Cwlth)
Part 3.14	Leases (Commercial and Retail) Act 2001
[3.37]	Section 100 (4)
omit
Trade Practices Act 1974 (Cwlth)
substitute
Competition and Consumer Act 2010 (Cwlth)
Part 3.15	Legislation Act 2001
[3.38]	Dictionary, part 1, new definition of Australian Consumer Law (ACT)
insert
Australian Consumer Law (ACT) means the provisions applying because of the Fair Trading (Australian Consumer Law) Act 1992, section 7 (Application of Australian Consumer Law).
[3.39]	Dictionary, part 1, definition of commissioner for fair trading
omit
Fair Trading (Consumer Affairs) Act 1973
substitute
Fair Trading (Australian Consumer Law) Act 1992
[3.40]	Dictionary, part 1, definition of office of fair trading
omit
Part 3.16	Liquor Act 2010
[3.41]	Section 3, note 1
omit
Fair Trading (Consumer Affairs) Act 1973
substitute
Fair Trading (Australian Consumer Law) Act 1992
[3.42]	Section 69 (1) (a) (viii), (ix) and (x)
substitute
	(viii)	the Competition and Consumer Act 2010 (Cwlth);
	(ix)	the Fair Trading (Australian Consumer Law) Act 1992;
	(x)	the Australian Consumer Law (ACT) or a corresponding law of a State;
[3.43]	Dictionary, note 2
insert
·	Australian Consumer Law (ACT)
[3.44]	Dictionary, definitions of identity card and investigator
omit
Fair Trading (Consumer Affairs) Act 1973
substitute
Fair Trading (Australian Consumer Law) Act 1992
Part 3.17	Magistrates Court (Agents Infringement Notices) Regulation 2003
[3.45]	Section 12
omit
Fair Trading (Consumer Affairs) Act 1973, section 9
substitute
Fair Trading (Australian Consumer Law) Act 1992, section 36

Part 3.18	Magistrates Court (Sale of Residential Property Infringement Notices) Regulation 2004
[3.46]	Section 11
omit
Fair Trading (Consumer Affairs) Act 1973, section 9
substitute
Fair Trading (Australian Consumer Law) Act 1992, section 36
Part 3.19	Magistrates Court (Security Industry Infringement Notices) Regulation 2003
[3.47]	Section 12
omit
Fair Trading (Consumer Affairs) Act 1973, section 9
substitute
Fair Trading (Australian Consumer Law) Act 1992, section 36
Part 3.20	Racing Act 1999
[3.48]	Section 61X heading
omit
Trade Practices Act
substitute
Competition and Consumer Act
[3.49]	Section 61X (1) and (2)
omit
Trade Practices Act 1974 (Cwlth)
substitute
Competition and Consumer Act 2010 (Cwlth)
Part 3.21	Road Transport (Public Passenger Services) Act 2001
[3.50]	Section 8 heading
omit
Trade Practices Act
substitute
Competition and Consumer Act
[3.51]	Section 8
omit
Trade Practices Act 1974 (Cwlth)
substitute
Competition and Consumer Act 2010 (Cwlth)
Part 3.22	Sale of Motor Vehicles Act 1977
[3.52]	Section 71 (7) (b) and (c)
substitute
	(b)	an offence against the Competition and Consumer Act 2010 (Cwlth); or
	(c)	an offence against the Australian Consumer Law (ACT) or a corresponding law of a State; or
[3.53]	Dictionary, note 2
insert
·	Australian Consumer Law (ACT)
Part 3.23	Second-hand Dealers Regulation 2002
[3.54]	Section 3, note 1
omit
For example, the signpost definition ‘credit card—see the Fair Trading Act 1992, section 28 (Unsolicited credit and debit cards).’ means that the term ‘credit card’ is defined in that section and the definition applies to this regulation.
substitute
For example, the signpost definition ‘credit card—see the Australian Consumer Law (ACT), section 2 (1).’ means that the term ‘credit card’ is defined in that law and the definition applies to this regulation.
[3.55]	Dictionary, note 2
insert
·	Australian Consumer Law (ACT)
[3.56]	Dictionary, definitions of credit card and debit card
substitute
credit card—see the Australian Consumer Law (ACT), section 2 (1).
debit card—see the Australian Consumer Law (ACT), section 2 (1).
Part 3.24	Security Industry Act 2003
[3.57]	Section 41 (4)
omit
Fair Trading (Consumer Affairs) Act 1973
substitute
Fair Trading (Australian Consumer Law) Act 1992
Part 3.25	Security Industry Regulation 2003
[3.58]	Section 6 (1) (g)
omit
Fair Trading (Consumer Affairs) Act 1973
substitute
Fair Trading (Australian Consumer Law) Act 1992
Part 3.26	Territory Records Act 2002
[3.59]	Section 39 (5)
omit
Trade Practices Act 1974 (Cwlth)
substitute
Competition and Consumer Act 2010 (Cwlth)
Part 3.27	Utilities Act 2000
[3.60]	Section 20 (2) (d)
substitute
	(d)	the Australian Consumer Law (ACT);
[3.61]	Dictionary, note 2
insert
·	Australian Consumer Law (ACT)

Endnotes
1	Presentation speech
	Presentation speech made in the Legislative Assembly on 18 November 2010.
2	Notification
	Notified under the Legislation Act on 16 December 2010.
3	Republications of amended laws
	For the latest republication of amended laws, see www.legislation.act.gov.au.

I certify that the above is a true copy of the Fair Trading (Australian Consumer Law) Amendment Bill 2010, which was passed by the Legislative Assembly on 9 December 2010. 

Acting Clerk of the Legislative Assembly

© Australian Capital Territory 2010